Romer v. Evans, 517 U.S. 620; 116 S. Ct. 1620; 134 L. Ed. 2d 884 (1996)

Facts—Colorado voters adopted an amendment to the state’s constitution (Amendment 2) that prohibited all state and local legislation designed to protect homosexuals. The trial court issued a preliminary injunction against enforcement of the amendment; the Colorado Supreme Court decided that the amendment should be subject to strict scrutiny and remanded the case to the trial court. It enjoined enforcement of the law, and the Colorado Supreme Court affirmed.

Question—Does a state constitutional provision prohibiting legislation designed to aid homosexuals conflict with the equal protection clause of the Fourteenth Amendment?


Reasons—J. Kennedy (6–3). The state view that this amendment was designed to do no more than deny special rights to homosexuals was “implausible.” Instead, he argued that “Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both private and governmental spheres.” Laws designed to prohibit discrimination typically enumerate the specific groups they are designed to protect, and Amendment 2 would prohibit such enumeration on behalf of homosexuals. The amendment thus “imposes a special disability upon those persons alone.” Typically, the Court will uphold laws that neither burden fundamental rights nor target a suspect class if such laws bear “a rational relation to some legitimate end” but both the “broad and undifferentiated disability” that this law imposes on a single class and its broad breadth seem “inexplicable by anything but animus toward the class it affects” and therefore “lacks a rational relationship to legitimate state interests.” Kennedy argued that “the resulting disqualification of a class of persons from the right to seek specific protections from the law is unprecedented in our jurisprudence.” Kennedy further described the amendment as “a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classifications of persons undertaken for its own sake, something the Equal Protection Clause does not permit.”

J. Scalia, dissenting, said that “The Court has mistaken a Kulturkampf [cultural-war] for a fit of spite.” Because the Constitution is silent on the issue, it should be left to democratic majorities. He also argued that the decision in this case contradicted Bowers v. Hardwick. If, as Bowers suggested, homosexual conduct could be criminalized, then “it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.” The only “animus” that Colorado has adopted is “moral disapproval of homosexual conduct,” which it registered by reasonable means. The amendment no more disadvantages homosexuals than the establishment clause of the First Amendment disadvantages “theocrats” or the republican form of government clause disadvantages “monarchists.” If this amendment is invalid, then so should be long-stating constitutional provisions, recognized in Davis v. Beason, 133 U.S. 333 (1890) designed to prohibit polygamy. The Court’s decision rested less on the Constitution than on “the views and values of the lawyer class from which the Court’s Members are drawn.”

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